BVA9500309 DOCKET NO. 92-07 286 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for low back disability on a secondary basis. REPRESENTATION Appellant represented by: Military Order of the Purple Heart WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michael P. Vander Meer, Associate Counsel INTRODUCTION The veteran served on active duty from February 1942 to June 1946. This case is before the Board of Veterans' Appeals (Board) on appeal from a May 1990 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. This case was last before the Board in May 1993, at which time it was remanded for further development. Following completion of the requested development, rating decisions entered in March and August 1994 continued to deny the benefit sought on appeal, and Supplemental Statements of the Case were issued in May and August 1994. The appeal was returned to and redocketed at the Board in December 1994. It is noted that the March 1994 rating decision referred to above, in addition to continuing to deny the benefit currently sought on appeal, also denied service connection for stomach or other gastrointestinal disorder. However, the subsequent record does not reflect that the veteran has been notified of such denial, and this matter is, accordingly, brought to the attention of the RO for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The veteran states that he initially experienced back problems approximately two to three years after service, and indicates that he has walked with a limp ever since sustaining a service-incurred gunshot wound to his left lower extremity. He states that his service-connected left lower extremity is shorter than the right, for which he has compensated by using a 1/2-inch lift in his left shoe on an intermittent basis since service, and contends that he has current low back disability which is directly attributable to impairment, primarily an altered gait, associated with his service-connected left lower extremity disorder. DECISION OF THE BOARD In accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), following review and consideration of all evidence and material of record in the veteran's claims file, and for the following reasons and bases, it is the decision of the Board that the evidence is at least in equipoise, and, thus, in favor of the veteran's appeal for secondary service connection for low back disability. FINDING OF FACT The veteran's current low back disability, including degenerative disc disease, is causally related to his service-connected disability picture for the left lower extremity. CONCLUSION OF LAW Low back disability, including degenerative disc disease, is proximately due to or the result of service-connected disability. 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. § 3.310(a) (1993). REASONS AND BASES FOR FINDING AND CONCLUSION The Board finds that the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, the Board finds that this claim is plausible. The Board is also satisfied that all relevant facts have been properly developed, and that no further assistance to the veteran is required to comply with 38 U.S.C.A. § 5107(a). Service connection is in effect for disabilities including residuals of a gunshot wound, muscle injury, left thigh, rated as 40 percent disabling; and for residuals of fracture, left femur, with degenerative joint disease, left knee, rated as 30 percent disabling. Under the law, service connection may be granted for disability which is proximately due to or the result of service-connected disability. 38 C.F.R. § 3.310(a). The veteran contends that he has current low back disability which is directly attributable to impairment, including shortening and resultant altered gait, associated with his service-connected disorder of the left lower extremity. In this regard, when examined by VA in May 1947, the veteran's left lower extremity was noted to be one-half inch shorter than the right. When seen for VA outpatient treatment in November 1987, the veteran alluded to having experienced chronic low back pain since 1946 and indicated that his back would go out perhaps once annually, at which time he would seek osteopathic treatment. On VA examination in October 1989, at which time the veteran again alluded to experiencing low back pain since service and was noted to walk with a slight limp favoring the left lower extremity, the examiner indicated that his left lower extremity was approximately 2 centimeters shorter than the right. The impression on X-ray examination of the lumbosacral spine was multilevel degenerative disc disease, and the examination diagnoses included lumbosacral strain. It was the examiner's opinion that, "[o]n a more probable than not basis, it [did] not appear that [the veteran's] low back condition" was related to his service-connected left lower extremity. At his personal hearing in October 1991, the veteran indicated that he used a built-up shoe intermittently since service to compensate for his shortened left lower extremity. He also referred to slippage involving three discs which occurred when he stepped on his left foot. A January 1992 statement from two acquaintances who had known the veteran since 1946 indicates that the veteran had experienced "back problems" on multiple occasions in the past. More recently, the veteran was examined by VA in December 1993, at which time he complained of continued back pain. The examiner noted that the veteran did not appear to fully weight bear on the left side, possibly due to his short left lower extremity; the examiner's measurement indicated that the veteran's left lower extremity was at most 1.5 centimeters shorter than the right. The examiner noted that there was some evidence on physical examination of spinal stenosis, and that sensation was decreased along the L3, L4 and L5 nerve distribution. Findings on X-ray examination of the veteran's lumbosacral spine included disc alterations of L3 through S1 and associated moderately severe hypertrophic facet disease in the lower lumbar region. The examiner commented that some of the veteran's "back problems may be due to his abnormal gait pattern that he has had because of his leg length discrepancy in the past." In May 1994, the veteran was seen by a private physician for a second opinion regarding whether his back pain was secondarily related to his service-connected left lower extremity. The related treatment report reflects what "appear[ed] to be" a 3/4-inch to 1-inch discrepancy in leg lengths. The assessment was "[c]hronic low back pain, possibly related to leg injury and subsequent gait abnormality. Confirmation is not possible." In considering the veteran's claim for secondary service connection for low back disability, the Board would point out that the basis of the veteran's contentions, to the effect that he has current low back disability which was caused by impairment including shortening and a resultant gait abnormality associated with his service-connected left lower extremity, has been addressed by the respective examiners who conducted VA examinations in October 1989 and, most recently, in December 1993. The former felt that the crucial causal link was not probable. The latter, on the other hand, said the two may well be related. Moreover, an even later private clinical opinion termed the relationship possible, although certainty in that regard was not. On balance, there seems at least as much medical support for the veteran's position as there is to the contrary. We likely will never know more than we do now. In such a case favorable action is indicated. ORDER Secondary service connection for the veteran's low back disability is granted. J. J. SCHULE Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.